Czy w przypadku równoległego toczenia się egzekucji z nieruchomości i egzekucji w celu zniesienia współwłasności nieruchomości w drodze sprzedaży publicznej zachodzi zbieg egzekucji?

In the course of enforcing a decision on the dissolution of joint ownership of real estate through its sale by auction, it may turn out that enforcement proceedings to satisfy monetary claims of a creditor or creditors asserted against one, some or all co-owners of the real estate have been directed at the same time. In such a case, a situation arises that is commonly referred to as the concurrence of execution from real estate and execution in order to terminate joint ownership by public sale (Article 1070 of the Code of Civil Procedure). There is no consensus in the doctrine as to the legal nature of enforcement with a view to abolishing the joint ownership of real estate by way of a public sale, with two predominant views generally discernible. The first is that this is an example of execution and the second is that it should be identified as other enforcement proceedings. The considerations presented in this article lead to the conclusion that it is reasonable to argue that a public sale conducted for the purpose of abolishing co-ownership of real estate is not ‘execution’. It would be more appropriate to use the term “enforcement”, and the demand raised in the doctrine to move the provisions on enforcement for the purpose of dissolution of joint ownership of real property by way of public sale to Book Two of Part One of the Code of Civil Procedure regulating non-proceeding or to separate the category of “other enforcement proceedings” separate from enforcement proceedings deserves further analysis. It is not without significance for the case that Article 1070 of the Code of Civil Procedure does not concern the concurrence of two executions, but only resolves the mutual relationship between the execution of a court decision on the dissolution of joint ownership by way of sale of real estate, which is being carried out at a given moment in nonprocedural proceedings, and the judicial execution pending against the same real estate. The purpose of the article is not to present the complete consequences of the separation of the group of ‘other enforcement proceedings’ (including the title proceedings for the dissolution of co-ownership of real estate through its sale by auction), but to draw attention to the historical basis of the existing legal status in this respect, doubts (e.g. terminological) that it may cause and the legitimacy of considering its amendment. Keywords: coincidence of executions, real estate execution, termination of joint ownership, public sale of real estate, enforcement proceedings, execution